Atkins v. Byrnes
| Decision Date | 31 January 1874 |
| Citation | 71 Ill. 326,1874 WL 8667 |
| Parties | AMOS ATKINSv.THOMAS BYRNES. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Madison county; the Hon. JOSEPH GILLESPIE, Judge, presiding.
Mr. DAVID GILLESPIE, for the appellant.
Messrs. DALE & BURNETT, for the appellee.
The plaintiff's right to the property in controversy is based upon a chattel mortgage executed to him by William A. Skeen, the original owner of the property, on the 29th day of June, 1868, to secure the payment of a promissory note for $333 in 90 days from that date.
The defense interposed is, first, that William Cool was entitled to the property under a prior mortgage, subject to which the plaintiff's mortgage was taken; second, that the defendant, at the time the plaintiff sued out his writ, held the property as a distress for rent, by virtue of a distress warrant issued by William Cool against William A. Skeen, and directed to him as bailiff. The mortgage to Cool was executed on the 21st day of September, 1867, to secure the payment of a promissory note for $250 one year and fifteen days from date. The distress warrant was issued on the 8th day of January, 1869, and was executed by taking the property in controversy from the possession of Skeen on the 9th day of the same month. Prior to that time, the plaintiff had not reduced the property to his possession under his chattel mortgage, but had suffered the same to remain in the possession of Skeen.
The court, at the instance of the defendant, instructed the jury as follows:
“The court instructs the jury that the plaintiff in this case claims title to the property under a chattel mortgage, executed by one William A. Skeen to the plaintiff, bearing date June 29, 1868, which mortgage is made subject to a mortgage executed by said Skeen to one Wm. Cool.
The defendant claims title by virtue of a distress warrant issued by Cool to him on the 8th day of January, 1869, and by virtue of which he levied upon the property in question as the property of said Skeen.
Defendant also sets up title in Wm. Cool under the chattel mortgage mentioned in the chattel mortgage under which plaintiff claims. Upon this state of facts, the court instructs the jury as follows:
1. If the jury believe, from the evidence, that, at the time of the commencement of this suit, Wm. Cool held a valid mortgage upon the property in question, and that this mortgage was made prior to the execution of the mortgage under which plaintiff claims, and that plaintiff took his mortgage subject to the mortgage of Cool, and that, at the time of the commencement of this suit, said mortgage from Skeen to Cool, or a portion of it, was unpaid, then the jury will find for the defendant, upon the issue of property in Wm. Cool, and this, although Cool may never have taken possession under his mortgage, (amended,) unless he has lost the same by his laches.
If the jury believe, from the evidence, that the defendant, at the time of the commencement of this suit, held the property under the distress warrant in evidence before the jury, and at the time of levying said distress warrant the property in question was in possession of said Wm. A. Skeen, and that the rent mentioned in said distress warrant, or a portion of it, was then due to Cool; and if the jury further believe, from the evidence, that the debt mentioned in the chattel mortgage, executed by said Skeen to plaintiff, had been due for the space of two months and upwards, at the time of levying said distress, and that said plaintiff had suffered the said Skeen to remain in possession of said property for said time after said debt became due, then the jury will find for the defendant upon the issue presented by the fifth plea.
If the jury believe, from the evidence, that Atkins allowed Skeen to remain in possession of the property in question for the space of three months after the same became due, and that during said time Cool obtained possession of said property under a valid distress, then the jury will find for the defendant.”
It is insisted by the plaintiff that these instructions are erroneous, because--
First--The defendant did not take the property under the chattel mortgage.
Second--The chattel mortgage was not competent evidence to maintain the issue under either plea.
Third--The evidence shows that the chattel mortgage was paid.
Fourth--That there was not, in fact, a valid distress, and the question of whether the distress warrant was valid, is, by the last instruction, improperly left to the jury.
It was said, in Anderson et al. v. Talcott, 1 Gilm. 371, ...
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